Curtis Shepherd, Sr., Debra Williams, Michael Shepherd, Linda Shepherd, Nathaniel Shepherd, Jr., Stephen Shepherd, Christopher Shepherd, and Rodney Shepherd, Individually and as Heirs of Nadine Shepherd and on behalf of the Estate of Nadine Shepherd v. Our Lady of the Lake Hospital, Inc. d/b/a Our Lady of the Lake Regional Medical Center, Baton Rouge Cardiology Center, LLC, Evens Roddy, M.D., Venkat Reddy Surakanti, JD., and East Baton Rouge Parish Emergency Medical Services

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2019 CA 0802

CURTIS SHEPHERD SR., DEBRA WILLIAMS, MICHAEL SHEPHERD,
LINDA SHEPHERD, NATHANIEL SHEPHERD JR., STEPHEN
SHEPHERD, CHRISTOPHER SHEPHERD, AND RODNEY SHEPHERD,
INDIVIDUALLY AND AS THE HEIRS OF NADINE SHEPHERD
L AND ON BEHALF OF THE ESTATE OF NADINE SHEPHERD

VERSUS

BATON ROUGE CARDIOLOGY CENTER, DR. RODNEY EVENS,
DR. VENKAT SURAKANTI, OUR LADY OF THE LAKE
REGIONAL MEDICAL CENTER, AND EAST BATON ROUGE
PARISH EMERGENCY MEDICAL SERVICES

Judgment Rendered: MAR 1 2 2020

K 3G 7G Z: 3C 7C ' iC

Appealed from the
19" Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. 631952

The Honorable Timothy E. Kelley, Judge Presiding

Quincy M. Richard, Jr. Counsel for Plaintiffs/ Appellants

Stacy L. Christophe Curtis Shepherd, Sr., et al.
Baton Rouge, Louisiana

Anderson O. " Andy" Dotson Counsel for Defendant/Appellee
Arthur " Howell" Andrews, Sr. City of Baton Rouge, Parish of East
Baton Rouge, Louisiana Baton Rouge, through the Department of
Emergency Medical Services

BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

U

THERIOT, J.

Curtis Shepherd, Sr., Debra Williams, Michael Shepherd, Linda Shepherd,

Nathaniel Shepherd, Jr., Stephen Shepherd, Christopher Shepherd, and Rodney

Shepherd, individually and as heirs of Nadine Shepherd and on behalf of the estate

of Nadine Shepherd, appeal the Nineteenth Judicial District Court' s judgment

granting East Baton Rouge Parish Emergency Medical Services' exception of no

right of action. For the following reasons, the Nineteenth Judicial District Court' s

judgment is reversed and the matter is remanded for further proceedings consistent

with this opinion.

FACTS AND PROCEDURAL HISTORY

On May 30, 2013, Curtis Shepherd, Sr., Debra Williams, Michael Shepherd,

Linda Shepherd, Nathaniel Shepherd, Jr., Stephen Shepherd, Christopher

Shepherd, and Rodney Shepherd, individually and as heirs of Nadine Shepherd and

on behalf of the estate of Nadine Shepherd ( collectively " Appellants"), filed a

petition for medical review panel. Appellants requested that a medical review

panel be convened to investigate the treatment of Nadine Shepherd from April 25,

2012 and thereafter by Baton Rouge Cardiology Center, Dr. Rodney Evens, Dr.

Venkat Surakanti, Our Lady of the Lake Regional Medical Center (" OLOL"), and

East Baton Rouge Parish Emergency Medical Services (" EMS"). This appeal

concerns only Appellants' claims against EMS.

Appellants asserted in their petition for medical review panel that, on or

about July 7, 2012, EMS was called out because Mrs. Shepherd was having

complications with her heart indicative of cardiac arrest.' Appellants alleged that,

while in transit to OLOL, EMS paramedics failed to adhere to Advanced

Cardiovascular Life Support Protocol in favor of merely talking to Mrs. Shepherd

Mrs. Shepherd had recently been discharged from OLOL on June 21, 2012, after undergoing a cardiac procedure
performed by Dr. Venkat Surakanti.

2

in hopes of maintaining her consciousness. Mrs. Shepherd was admitted to OLOL,

where she died due to complications experienced in cardiac arrest.

In their petition for medical review panel, Appellants asserted that they are

the children of Mrs. Shepherd, and thus entitled to maintain a wrongful death and

survival action.' Appellants further asserted that they were entitled to damages for

loss of love, affection, enjoyment of life, and society and services due to their

mother' s death, as well as past medical expenses.

On November 13, 20145 EMS filed an exception of no right of action. EMS

asserted that, at all tunes pertinent, EMS was performing its medical duties under

the direction of a physician and is thus immune from suit pursuant to La. R.S.

40: 1233. 3 EMS attached two exhibits to its exception: ( 1) the affidavit of Jeremy

Landry, a unit commander for EMS who had provided care to Mrs. Shepherd, who

stated that EMS had been in contact with and followed all directions and

instructions provided by OLOL' s Medical Control throughout the transportation of

Mrs. Shepherd to OLOL; and ( 2) a Prehospital Care Report, which summarized the

care provided to Mrs. Shepherd prior to her reaching OLOL.

On February 19, 2015, Appellants filed a memorandum in opposition to

EMS' s exception of no right of action. Appellants specifically pointed out that the

Prehospital Care Report provided by OLOL lacked a signature by a physician

acknowledging that he or she had authorized the care provided to Mrs. Shepherd.

Accordingly, Appellants argued that Jeremy Landry was not following the

instructions of a physician while rendering emergency medical care to Mrs.

Shepherd, and thus did not qualify for immunity based on La. R.S. 40: 1133. 13.

In a judgment signed May 4, 2015, the trial court granted EMS' s exception

of no right of action and dismissed Appellants' claims against EMS with prejudice.

Because Appellants are Mrs. Shepherd' s children, Appellants have a right to bring both a wrongful death action
and a survival action pursuant to La. Civ. Code arts. 2315. 1 and 2315. 2.

3 Louisiana Revised Statutes 40: 1233 has now been redesignated to La. R. S. 40: 1133. 13. For clarity, this statute
shall be referred to as La. R. S. 40: 1133. 13 for the remainder of this opinion.

3

On July 30, 2015, Appellants filed a motion for devolutive appeal. The trial court

granted the devolutive appeal in an order signed on August 4, 2015.

ASSIGNMENT OF ERROR

Appellants assign the following as error.

1)
The trial court erred in granting Defendant, the East Baton Rouge
Parish Emergency Medical Services' exception of no right of action.

STANDARD OF REVIEW

The standard of review of a ruling on an exception of no right of action,

which presents a question of law, is de novo. LeCompte v. Continental Casualty

Co., 2016- 1359 ( La. App. 1 Cir. 7/ 12/ 17); 224 So. 3d 1005, 1009, writ denied,

2017- 1525 ( La. 12/ 15/ 17); 231 So. 3d 635. The function of an exception of no

right of action is a determination of whether plaintiff belongs to the class of

persons to whom the law grants the cause of action asserted in the petition. The

exception of no right of action serves to question whether the plaintiff in the

particular case is a member of the class of persons that has a legal interest in the

subject matter of the litigation. Badeaux v. Southwest Computer Bureau, Inc.,

2005- 0612 ( La. 3/ 17/ 06); 929 So. 2d 1211, 1216- 17.

DISCUSSION

In their sole assignment of error, Appellants assert that the trial court erred

in granting EMS' s exception of no right of action. Although the two exceptions

are often confused, the peremptory exceptions of no right of action and no cause of

action are separate and distinct. La. Code Civ. P. art. 927( A)( 5) and ( 6); State, by

and through Caldwell v. Astra Zeneca, AB, 2016- 1073 ( La. App. 1 Cir. 4/ 11/ 18);

249 So. 3d 38, 42, writs denied, 2018- 0766, 2018- 0758 ( La. 9/ 21/ 18); 252 So. 3d

899, 904. The function of the exception of no right of action is a determination of

whether plaintiff belongs to the class of persons to whom the law grants the cause

of action asserted in the petition. La. Code Civ. P. art. 927( A)(6); Caldwell, 249

11

So. 3d at 42. In examining an exception of no right of action, a court should focus

on whether the particular plaintiff has a right to bring the suit, but assume that the

petition states a valid cause of action for some person. Evidence supporting or

controverting an exception of no right of action is admissible; however, in the

absence of evidence to the contrary, the averments of fact in the pleadings will be

taken as true. Determination of whether a plaintiff has a right of action is a

question of law. Caldwell, 249 So. 3d at 42- 43.

Louisiana Revised Statutes 40: 1133. 13 provides in pertinent part:

A)( 1) Any emergency medical services practitioner, licensed
pursuant to the provisions of this Part who renders emergency medical
care to an individual while in the performance of his medical duties
and following the instructions of a physician shall not be individually
liable to such an individual for civil damages as a result of acts or
omissions in rendering the emergency medical care, except for acts or
omissions intentionally esigned to harm, or for grossly negligent acts
or omissions which result in harm to such an individual. Nothing
herein shall relieve the driver of the emergency vehicle from liability
arising from the operation or use of such vehicle. ( Emphasis added.)

2) The immunity granted to emergency medical services practitioners
by the provisions of this Part shall extend to parish governing
authorities, police departments, sheriffs' offices, fire departments, or
other public agencies
in rendering emergency medical
engaged

services and its insurers with respect to such emergency medical
services unless the emergency medical services practitioner employed
by such agencies would be personally liable under the provisions of
Paragraph ( 1) of this Subsection.

By enacting La. R.S. 40: 1133. 13, " the Legislature granted EMTs a qualified

immunity for liability from ordinary negligence claims; this immunity does not

cover intentional or grossly negligent acts or omissions." Miller v. Acadian

Ambulance Service, Inc., 2017- 1096 ( La. App. 3 Cir. 5/ 23/ 18); 248 So. 3d 469,

477- 78, writ denied, 2018- 1452 ( La. 11/ 20/ 18); 256 So. 3d 990, oting Rathey v.
u

Priority EMS, Inc., 2004- 0199 ( La. App. 4 Cir. 1/ 12/ 05); 894 So. 2d 438, 461, writs

denied, 2005- 0789, 2005- 0802 ( La. 5/ 6/ 05); 901 So. 2d 1107, 1108.

An immunity from liability destroys the plaintiff' s substantive cause of

action against the immune party, whereas an immunity from suit merely restricts

5

the plaintiff' s right to sue the defendant. Descant v. Administrators of Tulane

Educational Fund, 93- 3098 ( La. 7/ 5/ 94); 639 So. 2d 246, 249. Louisiana Revised

Statutes 40: 1133. 13 does not grant emergency medical personnel immunity from

suit, only immunity from liability under certain circumstances. First, the EMT

must be rendering emergency medical care to an individual while in the

performance of his medical duties. Second, the EMT must be following the

instructions of a physician. Third, the immunity from liability does not apply to

acts or omissions intentionally designed to harm, or for grossly negligent acts or

omissions which result in harm to such an individual. La. R. S. 40: 1133. 13( A)( 1);

Kyser v. Metro Ambulance, Inc., 33, 600 ( La. App. 2 Cir. 6/ 21/ 00); 764 So. 2d 215,

219, writ denied, 2000- 2212 ( La. 10/ 27/ 00); 772 So.2d 650; see also Ratbey, 894

So. 2d at 461.

Thus, EMS is not immune from suit, but is instead immune from liability if

the above circumstances apply. Accordingly, any immunity from liability would

not have destroyed Appellants' right of action against EMS. The exception of no

right of action should have been denied by the trial court.4

DECREE

For the above and foregoing reasons, the Nineteenth Judicial District Court' s

judgment granting East Baton Rouge Parish Emergency Medical Services'

exception of no right of action is reversed and the matter is remanded for further

proceedings consistent with this opinion.

REVERSED AND REMANDED.

4 Statutory immunity may be raised as an affirmative defense in a defendant' s answer to a petition after the medical
review panel process is complete and a lawsuit has been filed. See La. Code Civ. P. art. 1005; see also Davis v.
Hoogacker, 2018- 0921 ( La. App. 1 Cir. 12/ 21/ 18); 2018 WL 6718507 at * 3 ( finding that an employer' s immunity
from tort provided by workers' compensation law is an affirmative defense and thus not properly raised by the
objection of no right of action); Sauceberry v. Webre, 2016- 0719 ( La. App. I Cir. 5/ 5/ 17); 2017 WL 1788096 at * 4,
n. 2, writ denied, 2017- 1524 ( La. 11/ 17/ 17); 229 So. 3d 931 ( noting that a claim of discretionary immunity from
liability arising from policymaking or discretionary acts under La. R. S. 9: 2798. 1 is an affirmative defense); White v.
New Orleans Center for Creative Arts, 2019- 0213 ( La. App. 4 Cir. 9/ 25/ 19); 281 So. 3d 813, 822, writ denied, 2019-
01725 ( La. 12/ 20/ 19); 286 So. 3d 428 ( finding that the immunity created by La. Ch. C. art. 611, which applies to
mandatory reporters of child abuse, is an affirmative defense and is not properly raised via peremptory exception).

I

STATE OF LOUISIANA

McDONALD, J., concurring.

I agree with reversal of the judgment in this case. I write separately to discuss

one issue.

During the pendency of a medical review process, it appears that, under La. R. S.

40: 1231B( 2)( a), a health care provider against whom a medical malpractice claim has

been filed may only raise peremptory exceptions of no right of action under La. C. C. P.

art. 927( 6) or prescription defenses under La. R. S. 9: 5628. In this case, while the

medical review process was pending, EMS improperly tried to use an exception of no

right of action to raise the defense of statutory immunity. As pointed out in footnote 4

of Judge Theriot's opinion, this court has indicated that the proper means to raise

statutory immunity is by an affirmative defense in an answer to a petition after the

medical review process is complete and a lawsuit has been filed — not by an exception

of no right of action while the medical review process is pending.